[2023] KECA 1366 (KLR)
The Court of Appeal held that the trial court erred by failing to consider the period the appellant spent in custody during the trial, as mandated by section 333(2) of the Criminal Procedure Code. Both parties agreed that the law requires the period spent in remand to be deducted from the total sentence imposed. The...
Source-derived case information.
- Citation
- [2023] KECA 1366 (KLR)
- Parties
- Appellant: Domnic Omondi Onyango; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 232 of 2018
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- Appeal allowed; sentence computation clarified.
- Judges
- HM Okwengu, HA Omondi, JM Ngugi
- Legal Topics
- Sentencing Principles, Time Spent in Custody, Murder Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Domnic Omondi Onyango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the trial court erred by failing to consider the period the appellant spent in custody during the trial when computing the sentence.
- 2 Whether section 333(2) of the Criminal Procedure Code mandates deduction of pre-sentence custody from the total sentence.
Ratio Decidendi
The Court of Appeal held that the trial court erred by failing to consider the period the appellant spent in custody during the trial, as mandated by section 333(2) of the Criminal Procedure Code. Both parties agreed that the law requires the period spent in remand to be deducted from the total sentence imposed. The appellate court therefore allowed the appeal and ordered that the 20-year sentence be computed from the date the appellant was first remanded in custody, ensuring compliance with statutory and policy requirements on sentencing.
Court Disposition
Appeal allowed; sentence computation clarified.
Orders
- The 2 years spent in custody during trial to be factored in the computation of the 20-year prison sentence imposed on the appellant.
- The 20-year sentence shall be computed to commence on 16th January, 2016, being the date the appellant was first arraigned in court and remanded in custody.
Full Case Text
Judgment text and source record
22 paragraphs
Onyango v Republic (Criminal Appeal 232 of 2018) [2023] KECA 1366 (KLR) (15 November 2023) (Judgment)
Neutral citation: [2023] KECA 1366 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 232 of 2018
HM Okwengu, HA Omondi & JM Ngugi, JJA
November 15, 2023
Between
Domnic Omondi Onyango
Appellant
and
Republic
Respondent
(Appeal from the Judgment of the High Court of Kenya at Kisumu (Majanja, J.) dated 18th April, 2018 in HCCRC No. 01 of 2016 Criminal Case 1 of 2016 )
Judgment
1. Domnic Omondi Onyango, the appellant herein, was tried and convicted by the High Court (Majanja, J) for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was sentenced to serve 20 years imprisonment.
2. He is now before us in an appeal which is against sentence only.
3. The main ground of appeal is that the learned Judge of the High Court erred in failing to consider, the time that he had spent in custody during the pendency of the trial. The applicant has filed written submissions in which he argues that as provided under section 333(2) of the Criminal Procedure Code, the period spent in custody during the trial is a factor to be considered when sentencing. He relies on Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, and the Judiciary Sentencing Policy Guidelines clauses 710 and 711.
4. The respondent has filed written submissions in which they concede to the appeal, accepting that section 333(2) of the Criminal Procedure Code requires that the period spent in remand during the trial, be included in the computation of the sentence.
5. In the circumstances, we allow this appeal and order that the 2 years that the appellant spent in custody during the pendency of the trial be factored in the computation of the 20 years prison sentence imposed on the appellant.Those shall be the orders of this Court.
DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF NOVEMBER, 2023. HANNAH OKWENGU............................................JUDGE OF APPEALH. A. OMONDI............................................JUDGE OF APPEALJOEL NGUGI............................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR Order of the court 1. Further to our Judgement delivered on 15th November, 2023, we hereby give clarity to the Judgment by ordering that the prison sentence of 20 years imposed on the appellant shall be computed to commence on 16th January, 2016, being the date, the appellant was first arraigned in court and remanded in custody.
MADE AT KISUMU THIS 16TH DAY OF NOVEMBER, 2023. HANNAH OKWENGU............................................JUDGE OF APPEALH. A. OMONDI............................................JUDGE OF APPEALJOEL NGUGI............................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR